Massachusetts Supreme Judicial Court rules on whether mediation requires mediators to be lawyers

In re Bott, 2012 WL 1970456, Docket No. SJC-10935 (5 June 2012) the Massachusetts Supreme Judicial Court held that mediation as a general matter does not constitute the practice of law and therefore practising mediators need not be lawyers. However, the court ruled that it will still regulate disbarred, suspended, and disciplined ex-lawyers who want to act as neutrals. 

Facts

Mr Bott resigned from the Massachusetts bar in 2005,  and was barred from legal practice after being found to have committed 11 ethics violations. In 2009, Mr Bott completed a mediation training program and filed a petition for relief in a county court in 2010 requesting permission to serve as a mediator. The case was reported to the full Supreme Judicial Court for consideration.   Mediation practitioners had deep concerns about the ramifications of any court judgment so interested state mediators lodged an amicus brief at court which warned, “A ruling that prevented non-lawyers from continuing to do [mediation work] would represent a significant change to the way the court has customarily treated mediation and mediators, and would have a dramatically negative impact on the Commonwealth's vibrant mediation community.”

Decision

After a brief survey of existing Massachusetts case laws, the court proposed a four-factor test to determine “whether mediation or other activities that do not constitute the practice of law when performed by non-lawyers may, in the context of bar discipline cases, nevertheless constitute legal work when performed by a lawyer”:

• whether the type of work is customarily performed by lawyers as part of their legal practice;
• whether the work was performed by the lawyer prior to suspension, disbarment, or resignation for misconduct;
• whether, following suspension, disbarment, or resignation for misconduct, the lawyer has performed or seeks leave to perform the work in the same office or community, or for other lawyers; and
• whether the work as performed by the lawyer invokes the lawyer's professional judgment in applying legal principles to address the individual needs of clients.

The court held that “an attorney who has resigned while the subject of disciplinary investigation, or who has been disbarred or suspended from the practice of law, may be prohibited, in some circumstances, from acting as a mediator.” Finding that many attorneys offer mediation services, and that many mediators draw on their legal knowledge and experience when approaching the cases, the court held that mediation may constitute legal work in the context of bar discipline cases.  The court remitted Mr Bott's case back to the county court to investigate whether Mr Bott’s mediation work would be appropriate. The court concluded that legislation was desirable to clarify the position.

Comment

This common sense judgment ensures that the pool of practising mediators is not arbitrarily restricted to lawyers whilst maintaining a degree of regulation over mediator standards. As a result of this judgment, in Massachusetts at least,  an attorney who has resigned from the practice of law while the subject of disciplinary investigation or has been disbarred or suspended from the practice of law, and who seeks to engage in employment as a mediator, may seek leave from the court to engage in such employment.

The question of mediator standards is hotly debated in other jurisdictions, with generally no mandatory regulation over those who practise as mediators. At the European level, the Mediation Directive required member states to promote mediator training and the development of and adherence to a voluntary code of conduct. Most member states already have established training providers and voluntary codes which mediators adhere to. The new German Mediation Act goes further than the Mediation Directive and introduces the title of a “certified mediator,” who has to complete at least 120 hours of intensive training.